Provision of employee references and ensuring safe recruitment

16 July 2019

Legal basis for providing a reference

There is no legal obligation to request a reference for a potential new employee. However, if an employer intends to make an offer of employment conditional upon receipt of a satisfactory reference, this should be made clear within the offer in order to be valid. Similarly, there is no legal obligation on an employer to provide a reference for an employee or ex-employee, unless there was a written agreement to do so or they are in a regulated industry such as financial services.

Where a reference is provided on behalf, the employer will be held liable for the contents. It is therefore sensible to have a policy in place to govern what level of employees can provide a reference, in what format, and what can be included. A consistent and clear policy will help to avoid allegations of discrimination, victimisation or breach of the implied term of trust and confidence.

A referee owes the subject a duty to take reasonable care to ensure a reference is true, accurate and fair and must ensure nothing contained in a reference could be construed as discriminatory, defamatory, malicious, false or could in any way be seen as negligent misstatement as this could lead to potential claims against the employer. There is a similar duty of care to the recipient of a reference and there could be a valid claim should a reference be found to include false information with the intention of the recipient relying on this.

The content of a reference

There is no definitive list of detail that must be included in a reference or for it to be comprehensive, but any reference provided should give a balanced overview of the employee.

As a basic starting point, all references provided should include the dates of employment and the role undertaken by the employee. An employer can consider covering the employee’s performance, their disciplinary record, absence record, time-keeping and any other relevant personal matters and the contents of a reference should be consistent with any reason for a dismissal. Beyond this, there are no specific requirements and it will be for the employer to determine what to include, usually based on their policy. An employer can simply provide a basic ‘factual reference’ containing dates and job role.

A reference should be marked "private and confidential for the addressee only". It is common for employers to provide a reference on the basis that both the subject and the recipient accepts that there will be a disclaimer of liability in respect of any negligent misstatement.

Considerations in deciding what to disclose

It can be difficult to balance the duty to subject and recipient, especially where the employee would prefer certain information not to be disclosed, for example in relation to outstanding disciplinary matters or threatened claims. Several cases support the employer’s right to include unresolved disciplinary matters or existing or threatened claims even though potentially harmful to the employee.

Referees can be asked to speculate about suitability for a new role. Generally this should be simple where the new position is similar to the role the employee undertook with the referee, but any opinion given should be limited to the referee’s specific knowledge of the employee. However, where the role is different, the referee should avoid speculating as to the employee’s suitability and can decline to answer if they have no specific knowledge.

A referee will be subject to GDPR controls in providing a reference where this contains personal information, for example in relation to an employee’s sickness absence record. It should be safe to confirm how many days ‘absent’ the employee has had, as this does not reveal any sickness information. Employers should ensure their policy makes clear that confidential information should not be included in a reference unless the worker consents to this course of action.

Safeguarding

Trustees are responsible for safeguarding even if certain aspects of the work are delegated to staff. Trustees should therefore consider making public their clear commitment to safeguarding by publishing the charity’s safeguarding policy and stating that failure to follow it will be dealt with as a very serious matter.

Protecting people and safeguarding should be a governance priority for all charities, regardless of size, type or income, not just those working with children or groups traditionally considered at risk.

A reference request will often seek information about whether an individual is suitable to work with children or vulnerable adults. If this is the case this should be disclosed. This can be disclosed on the understanding that proper reporting procedures have been followed at the stage of identifying the initial concern. If a Charity has concern in relation to an individual they should ensure that their policies are followed and reporting to the relevant organisations has occurred.

Contacting an employer following receipt of their reference

As an employer, you are not prohibited from contacting a referee to verify or follow up on a reference. While following up on a reference from previous employers is an important consideration, especially where you feel detail may have been omitted surrounding the reason for leaving or issues during employment, it may not always produce a satisfactory explanation. The employee may have left their previous employment under a settlement agreement, which may include an agreed reference and a prohibition on the employer saying anything further. Also, the referee may have a general policy of only providing a ‘factual reference’ and would not be willing to provide further information.